1781.
3d. Because the proceeds of this cargo were to be remitted from Holland to the owners residents in Great Britain.
4th. Because the voyage was in fact calculated for Great Britain and for Amsterdam in Holland, and therein was a breach of the articles of capitulation, and a forfeiture of its protection.
5th. Because the cargo on board was the property of British subjects not residents, nor owning estates, in Dominica, and therefore not within the protection of the capitulation.
The first, fourth, and fifth grounds, apply to the whole cargo, and the second and third to the principal part of it.
Whether the articles of capitulation extend protection to property after shipped and on its passage at sea, depends on the 13th article, and the general tendency and scope of the capitulation itself.
The main design of the capitulants was, to obtain a perfect security for their estates and property; and a full exercise of all the rights of property and ownership: And one great object with the French General was, to secure to France the commerce of the Island, and all its advantages, emoluments and revenues; but it was inconsistent with the design and object, which both had in view, to open to French and British capture the produce of the Island, and property of the capitulants, as soon as a-float at sea.
This would have injured the rights of property, discouraged the labour and agriculture of the Island, lessened its exports, and diminished the revenues of its government.
But the thirteenth article seems decisive: it stipulates “that the Merchants and Inhabitants of this Island, included in the present capitulation, shall enjoy all the privileges of trade, and on the same conditions as are granted to the subjects of his most Christian Majesty, throughout the extent of his dominions.”
By this article the capitulants are placed, with regard to their trade and commerce, on an equal footing with the subjects of France; every commercial privilege which the subjects of France enjoy is conceded to the capitulants; but it is certainly one privilege which a subject of France enjoys, that his property at sea, in the line of a fair trade and commerce, shall not be captured as prize by French subjects; consequently the cargo in this case, which is the property of capitulants, cannot be subject as prize to French captures. But is it asked, “was it not subject to British capture”? The article, it is said, stipulates, that the trade shall be carried on upon the like condition with the French trade, and the French trade is subject to interruption by British capture.
Had the capitulation stipulated generally, that the capitulants should exercise all the rights and privileges of trade exercised by